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                               Appellate Court                            Date: 2017.04.27
                                                                          09:27:38 -05'00'




                  People v. Means, 2017 IL App (1st) 142613



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



District & No.    First District, Second Division
                  Docket No. 1-14-2613



Filed             February 14, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-18213; the
Review            Hon. Thaddeus L. Wilson, Judge, presiding.



Judgment          Affirmed; fines, fees, and costs order corrected.


Counsel on        Michael J. Pelletier, Patricia Mysza, Benjamin A. Wolowski, and
Appeal            Elena B. Penick, of State Appellate Defender’s Office, of Chicago, for
                  appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Whitney L. Bond, and Aaron R. Bond, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE MASON delivered the judgment of the court, with opinion.
                  Presiding Justice Hyman and Justice Pierce concurred in the judgment
                  and opinion.
                                             OPINION

¶1        Following a bench trial, defendant Stacey Means was found guilty of the Class 2 felony of
     delivery of less than one gram of heroin. Means was sentenced to an extended term of nine
     years’ imprisonment and two years of mandatory supervised release. On appeal, Means
     maintains that his sentence is excessive in light of the nature of the offense, his nonviolent
     criminal background, his history of substance abuse, and the financial impact of his
     incarceration on taxpayers. Means also contends that the $2000 controlled substance fine
     assessed against him should have been $1000 because he was convicted of a Class 2, not a
     Class 1 felony. We affirm Means’s sentence and order the clerk of the circuit court of Cook
     County to correct the order assessing fines, fees, and costs to reflect a $1000 controlled
     substance fine.
¶2        Means was charged with one count of delivery of less than one gram of heroin within 1000
     feet of a school (720 ILCS 570/407(b)(2), 401(d) (West 2012)) and one count of delivery of
     less than one gram of heroin (720 ILCS 570/401(d) (West 2012)). The state dismissed the
     charge involving delivery within 1000 feet of a school before trial.
¶3        On August 27, 2013, Chicago police officer Nester DeJesus was assigned to the narcotics
     division as a “buy officer.” He was dressed in plain clothes and drove an unmarked vehicle in
     the in the vicinity of 701 N. Trumbull in Chicago. When he engaged a group of males at that
     location and inquired about trying to purchase heroin, Means responded and told him to pull
     over. Once Officer DeJesus exited the vehicle, Means handed him two ziplock bags with
     suspect heroin. Officer DeJesus gave Means $20 worth of prerecorded 1505 funds and then
     returned to the vehicle. After driving away from the area, Officer DeJesus informed his team
     about the narcotics transaction over police radio, indicated Means’s last known location, and
     described his attire. After the enforcement officers detained Means, Officer DeJesus returned
     to the area and identified Means as the individual with whom he had engaged in the
     hand-to-hand transaction approximately five minutes earlier. Officer DeJesus maintained
     custody of the ziplock bags Means gave him until he inventoried them. The prerecorded funds
     were not recovered from Means. Surveillance and enforcement officers corroborated officer
     DeJesus’s testimony.
¶4        The parties stipulated that the ziplock bags inventoried by Officer DeJesus contained 0.5
     grams of heroin and that the proper chain of custody was maintained at all times.
¶5        The trial court found Means guilty of delivery of less than one gram of heroin. Means’s
     motion for a new trial was denied.
¶6        The extended sentencing range for the Class 2 felony of delivery of less than one gram of
     heroin where the defendant has been convicted of the same or similar class felony within the
     previous 10 years is 7 to 14 years. 730 ILCS 5/5-4.5-35(a), 5-5-3.2(b)(1) (West 2012). At
     sentencing, the State argued in aggravation that Means’s criminal history included five prior
     drug-related convictions. Specifically, in 2008, Means received two years’ probation for
     possession of a controlled substance (PCS). In 2010, Means was sentenced to one year in the
     Illinois Department of Corrections for PCS, and later that year, he was sentenced in a separate
     case to two years’ probation for a Class 2 drug-related felony. In 2011, Means was again found
     guilty of PCS and received a sentence of 17 months’ imprisonment. In 2012, another PCS
     conviction resulted in a sentence of three years’ imprisonment. In light of Means’s history of
     repeated drug-related offenses, the State recommended a seven-year sentence.

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¶7         In mitigation, defense counsel argued that Means was the father of two children and that he
       was worried about being involved in a Department of Children and Family Services (DCFS)
       proceeding. Means hoped to get out of prison as soon as possible in order to provide for his
       children. Although the presentence investigation report (PSI) indicated that Means was
       affiliated with the Traveling Vice Lords street gang, defense counsel reported that Means
       denied membership in the gang and asked the court not to consider that part of the PSI. Counsel
       represented that Means had been taking GED classes around the time of his arrest, and he was
       looking forward to obtaining his GED. During his incarceration, Means completed programs
       conducted through the Cook County department of corrections, such as janitorial cleaning and
       chemical training classes. In the PSI, Means denied having any problems with illegal drugs and
       reported participating in drug treatment on two separate occasions while incarcerated.
¶8         In allocution, Means stated that he felt as though he was not guilty, and he was still trying
       to change his life in light of his “background and everything.” Although he intended to get his
       GED, he said, “things happen.” Means acknowledged his “history of being in trouble” and
       stated that he was learning from his mistakes. To that end, he was working to focus on his
       education while in prison. Means told the court he was really trying to get back to his two
       young children because he was “going through DCFS with them” and he did not want them to
       grow up as he did, without a father around to set an example. Neither Means nor his counsel
       provided specifics about any DCFS proceedings.
¶9         Prior to announcing sentence, the trial court stated:
                    “For purposes of sentencing the court has considered the evidence at trial, the
                gravity of the offense, the Presentence Investigation Report, the financial impact of
                incarceration, all evidence, information, and testimony in aggravation and mitigation,
                any substance abuse issues and treatment, the potential for rehabilitation, the
                possibility of sentencing alternatives, the statement of the defendant, and all hearsay
                presented and deemed relevant and reliable.”
¶ 10       The trial court then sentenced Means to an extended term of nine years’ imprisonment and
       two years of mandatory supervised release.
¶ 11       Means immediately filed a motion to reconsider sentence, which the court denied.
¶ 12       On appeal, Means maintains that his sentence is excessive in light of the nature of the
       offense, his nonviolent criminal background, his history of substance abuse, and the financial
       burden incarceration places on taxpayers.
¶ 13       Means’s 9-year sentence for the Class 2 felony of delivery of less than one gram of heroin
       was on the lower end of the 7-year to 14-year extended term sentencing range (730 ILCS
       5/5-4.5-35(a) (West 2012)), which Means was eligible for in light of his prior Class 2 felony
       conviction (730 ILCS 5/5-5-3.2(b)(1) (West 2012)). Means does not contend that the trial court
       abused its discretion in determining that he was eligible for an extended term.
¶ 14       Where, as here, a defendant’s sentence falls within the prescribed statutory limits, trial
       courts have broad discretion in imposing an appropriate sentence, and we will not find an
       abuse of that discretion unless the sentence is greatly at variance with the purpose and spirit of
       the law or is manifestly disproportionate to the offense. People v. Jones, 168 Ill. 2d 367,
       373-74 (1995); People v. Alexander, 239 Ill. 2d 205, 212 (2010). The trial court’s superior
       position to weigh factors such as the defendant’s credibility, demeanor, general moral
       character, mentality, social environment, and age mandates that a reviewing court refrain from


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       reweighing those factors and substituting its opinion for that of the trial court. People v. Stacey,
       193 Ill. 2d 203, 209 (2000).
¶ 15        Here, the trial court listed the factors considered in imposing sentence, including the
       evidence presented at trial, the gravity of the offense, the PSI, Means’s substance abuse
       treatment, his statement in allocution, his rehabilitative potential, sentencing alternatives, and
       the financial impact of incarceration. Means characterizes the trial court’s recitation of the
       factors it considered as “canned,” given that the court included references to “testimony” in
       aggravation and mitigation and “hearsay,” despite the fact that no live testimony was presented
       at his sentencing hearing. It would be helpful to defendants and reviewing courts alike for trial
       judges to articulate the grounds for the particular sentence imposed, particularly when the
       court elects to impose a sentence greater than that recommended by the prosecution. We
       strongly encourage that practice. But a trial court’s failure to detail precisely for the record the
       process by which it determines a defendant’s sentence is not grounds for reversal. People v.
       Evans, 373 Ill. App. 3d 948, 968 (2007). And we do not view the trial court’s reference to
       testimony and hearsay as an indication that it did not, in fact, consider the factors relevant to
       Means’s sentence.
¶ 16        Further, the trial court is presumed to have considered the mitigating evidence contained in
       the record. People v. Anderson, 325 Ill. App. 3d 624, 637 (2001). The record reflects that the
       trial court was presented with the mitigating evidence in the PSI and in defense counsel’s
       argument at sentencing, and nothing suggests that the court did not consider this evidence.
       Although the State recommended a seven-year sentence, a court is not bound by the
       prosecution’s sentencing recommendation (see People v. Streit, 142 Ill. 2d 13, 21-22 (1991)),
       any more than it is obligated to impose the minimum sentence available. Based on this record,
       we find no abuse of discretion by the trial court in sentencing Means to a term of nine years’
       imprisonment, which was well within the statutory range. To impose any lesser sentence
       would simply be substituting our judgment for that of the trial court.
¶ 17        Means nevertheless maintains that the trial court improperly balanced the small quantity of
       heroin involved in this offense with the high cost incarceration imposes on taxpayers. He
       argues that his history of drug abuse and nonviolent drug-related offenses are indicative of a
       man with a drug problem, and not an incorrigible criminal or drug kingpin who needed to be
       removed from society for nine years. But Means’s argument overlooks his statement in the PSI
       denying any problems with illegal drugs and the fact that he had twice been afforded drug
       treatment while incarcerated. The presence of some mitigating factors does not necessarily
       warrant a minimum sentence (People v. Flores, 404 Ill. App. 3d 155, 158 (2010)), and we may
       not reverse the trial court’s sentencing determination just because we might have weighed the
       relevant factors differently (People v. Spencer, 2016 IL App (1st) 151254, ¶ 38).
¶ 18        Means further argues that the excessive nature of his sentence is apparent by comparing it
       to his latest three-year sentence imposed in 2012. But this ignores Means’s eligibility for a
       minimum sentence in this case of seven years, which he does not dispute. Thus, although the
       nine-year term imposed by the trial court was, indeed, three times greater than Means’s 2012
       sentence, it was nevertheless toward the lower end of the sentencing range to which he was
       admittedly subject. And the fact that Means’s drug arrests were incurred in relatively rapid
       succession could support a trial judge’s conclusion that a term in excess of the minimum was
       warranted.


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¶ 19        The trial court was entitled to consider that Means received five drug related convictions in
       the six years before he committed this offense. Furthermore, despite receiving probation and
       more lenient prison sentences for his prior convictions, in addition to drug treatment while
       incarcerated, Means committed the instant offense approximately 15 months after he was
       sentenced to three years’ imprisonment on his 2012 case. Although Means’s release date from
       his 2012 conviction does not appear in the record, the three-year sentence was imposed in that
       case on May 24, 2012. Given the August 27, 2013 date of arrest in this case, it is apparent that
       Means reoffended shortly after his release from prison.
¶ 20        Accordingly, we do not find that Means’s sentence was greatly at variance with the
       purpose and spirit of the law or manifestly disproportionate to the seriousness of the offense.
       See People v. Teague, 2013 IL App (1st) 110349, ¶¶ 37-38 (affirming a defendant’s sentence
       over his contention that the trial court failed to account for his rehabilitative potential and
       finding that the defendant’s prior opportunities for rehabilitation were relevant aggravating
       considerations).
¶ 21        We have considered Means’s suggestion that “the circuit court’s sentence may also have
       been improperly driven by a desire to punish [Means] for exercising his right to go to trial.” A
       trial court may not punish a defendant who has exercised his constitutional right to a trial by
       imposing a longer sentence that it would have had the defendant agreed to plead guilty. People
       v. Moriarty, 25 Ill. 2d 565, 567 (1962); see also People v. Latto, 304 Ill. App. 3d 791, 804
       (1999) (sentence will be set aside where it is evident from the record that the court imposed the
       sentence, at least in part, because the defendant availed himself of his right to a trial instead of
       pleading guilty). But the record must clearly show that the court imposed the greater sentence
       as a punishment for demanding a trial. People v. Carroll, 260 Ill. App. 3d 319, 349 (1992). For
       example, in Moriarty, our supreme court found that the trial court’s remarks at sentencing
       constituted reversible error where the trial court stated:
                “ ‘If you’d have come in here, as you should have done in the first instance, to save the
                State the trouble of calling a jury, I would probably have sentenced you, as I indicated
                to you I would have sentenced you, to one to life in the penitentiary. It will cost you
                nine years additional, because the sentence now is ten to life in the penitentiary.’ ”
                Moriarty, 25 Ill. 2d at 567.
¶ 22        In this case, the trial court made no mention of plea negotiations or even hinted at a prior
       offer during Means’s sentencing hearing. Moreover, the record reflects that the trial court’s
       pretrial inquiries were limited to asking whether any plea offers were made and whether they
       fell within the extended term sentencing range, inquiries that are very common for trial judges
       to make. Thus, it is not apparent that the trial judge was made aware of the details of any
       pretrial offers made by the State. Consequently, because the record is devoid of any intimation
       from the trial court that it would have been better for Means if he pled guilty or that the court
       imposed the nine-year sentence to punish Means for going to trial, Means’ argument fails.
¶ 23        Finally, Means maintains, and the State concedes, that his controlled substance fine should
       have been $1000 and not $2000. See 720 ILCS 570/411.2(a)(2), (3) (West 2012) (providing
       that the controlled substance fine is $2000 for a Class 1 felony and $1000 for a Class 2 felony).
       Means failed to challenge his fines and fees in the trial court and so has forfeited review of that
       issue. In his brief, citing People v. Lewis, 234 Ill. 2d 32 (2009), Means invokes plain error as a
       basis for review of this unpreserved error. Although not directly on point, since it related to the
       assessment of an evidenced based fine without evidence to support it, Lewis could arguably

                                                    -5-
       support plain error review here. The State has not argued against plain error review and so has
       forfeited that argument. See People v. Williams, 193 Ill. 2d 306, 347-48 (2000); Ill. S. Ct. R.
       341(h)(7) (eff. Jan. 1, 2016) (“[p]oints not argued are waived”). Therefore, under the
       circumstances of this case, we deem it appropriate to address this issue on the merits.
       Accordingly, as the amount of the fine was clearly in error, we direct the clerk of the circuit
       court of Cook County to correct the fines and fees order to reflect a controlled substance fine of
       $1000 and not $2000.
¶ 24       For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 25      Affirmed; fines, fees, and costs order corrected.




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