NO. 4-09-0026 Filed 6/30/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Menard County NATHAN D. AHLERS, ) No. 08CF6 Defendant-Appellant. ) ) Honorable ) Richard D. Greenlief, ) Judge Presiding. _________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In May 2008, defendant, Nathan D. Ahlers, pleaded
guilty to aggravated criminal sexual abuse (720 ILCS 5/12-16(b)
(West 2008)) pursuant to an open plea. After accepting defen-
dant's guilty plea, the trial court sentenced him to four years
and six months in prison pursuant to the State's recommendation.
Defendant appeals, arguing that the trial court erred
by sentencing him to 4 1/2 years in prison. Specifically,
defendant contends that the court erred by considering (1)
defendant's mental retardation as an aggravating factor, (2)
unreliable nonstatutory factors in aggravation, and (3) informa-
tion from the reviewing psychiatrist's evaluation that was
obtained in violation of his privilege against self-incrimina-
tion. Because defendant has forfeited review of these issues, we
affirm. I. BACKGROUND
A. The State's Charge and Defendant's Initial Psychological Evaluation
On April 4, 2008, the State charged defendant with
aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West
2008)), alleging that defendant had knowingly touched the penis
of his minor brother, N.A., for the purpose of sexual gratifica-
tion. On April 10, 2008, defendant filed a motion for psycholog-
ical evaluation, which the trial court granted. The results of
that psychological evaluation were, in part, as follows:
"[Defendant] is an 18[-]year-old male
with significant cognitive impairment who is
currently in *** [j]ail facing charges [that
he sexually abused] his 16[-]year[-]old
brother, who also is cognitively impaired.
At the time of his arrest, [defendant] was
serving probation for sexual[ly] abus[ing]
the same sibling earlier this year [(Menard
County case No. 08-CM-3)]. He has been pre-
viously diagnosed with Attention Deficit
Disorder.
*** [Defendant's] behavior most likely
reflects [his] impulse[-]dominated personal-
ity, and his limited capacity to delay grati-
fication, rather than an intent to act out
aggressively. Placing [defendant] in a fa-
cility with hardened criminals would likely
- 2 - result in a continuation of his victimization
by others. However, he may lack the self[-]
control to resist victimizing those younger
or less capable then [sic] himself."
B. Defendant's Guilty Plea and Fitness Evaluation
In May 2008, defendant pleaded guilty to the
aggravated-criminal-sexual-abuse charge (720 ILCS 5/12-16(b)
(West 2008)) pursuant to an open plea--that is, defendant pleaded
guilty without receiving any promises from the State. In August
2008, defendant filed a motion to withdraw his guilty plea,
asserting that he (1) lacked an "understanding of the meaning and
impact of his guilty plea" and (2) had cognitive-ability scores
ranging from moderate to mild retardation. Following a September
2008 hearing, the trial court found that a bona fide doubt
existed as to defendant's fitness and ordered a fitness examina-
tion.
Dr. Daniel J. Cuneo, a clinical psychologist, performed
the fitness examination and reported, in part, the following
findings to the trial court:
"At the beginning of my interview with
[defendant], I informed him of the limited
confidentiality of my assessment as I would
be sending a copy of my findings to *** his
defense attorney[,] *** the State's Attor-
ney[,] and *** the presiding judge. When
asked if he understood the aforementioned
- 3 - information and if he wished to continue,
[defendant] nodded yes. I then asked him to
repeat back in his own words what he had just
agreed to do and he was able to say that I
was going to send a copy of my report to
other people.
* * *
It would be my opinion that
[defendant's] mental illness (Adjustment
Disorder with Anxious and Depressed Mood,
Dysthymic Disorder, Rule Out Attention Defi-
cit Hyperactivity Disorder, and Mild Mental
Retardation) does not at the present time
substantially impair his ability to under-
stand the nature and purpose of the proceed-
ings against him or his ability to assist in
his own defense. *** [Defendant] could ***
understand the concepts of plea bargaining
and probation. *** [E]ven though his memory
is impaired, he has sufficient memory to
relate these things in his own personal man-
ner. Therefore, it is my opinion that [de-
fendant] is presently fit to stand trial.
At the same time, [defendant] is intel-
lectually limited. His thinking is very
concrete and vocabulary that of a ten-year-
- 4 - old. I would recommend that the vocabulary
be kept simple. I would also recommend that
periodic checks be made during the court
proceedings to make sure that [defendant]
understands what is happening. [Defendant]
should be asked then to explain back in his
own words what is happening and not simply
answer yes or no that he comprehends. He
does have the ability to comprehend the trial
proceedings if these concepts are broken down
into simpler terms."
In October 2008, the trial court accepted the parties' stipula-
tion that defendant was fit in light of Cuneo's report. Thereaf-
ter, defendant withdrew his motion to withdraw his guilty plea.
C. Defendant's Sentencing Hearing and the Trial Court's Imposition of His Sentence
Following defendant's December 2008 sentencing hearing,
at which (1) defendant's father testified on defendant's behalf,
(2) the trial court called an employee from the Central Illinois
Services Access Group--which is a group home that provides
service and maximizes independence for the disabled--to testify
about security at its facility, (3) counsel presented argument,
and (4) defendant spoke on his own behalf, the court sentenced
defendant to 4 1/2 years in prison, explaining as follows:
"[T]he court has considered the
presentence investigation report, has spent
[a] considerable amount of time reading
- 5 - through all of the information that was pro-
vided here, the police reports, the State's
Attorney's referral letter, [and] the psycho-
logical evaluation ***.
[The psychological evaluation] dated ***
April 26th of this year [and] the sex of-
fender assessment *** would indicate this is
one of these difficult cases where *** [the
court does not] think there is any question
that the offense was committed.
The real question is his ability to be
rehabilitated. Whether he has impulse con-
trol, he has psychological factors [that]
would allow rehabilitation, and where that
rehabilitation should take place.
[The court] read[s] from [the sex-of-
fender assessment] that *** the conclusions
drawn from the summary place him at a 26
percent chance [to reoffend], [which] is not
defendant[-]specific as [the court] read[s]
the report.
But, 26 percent of all offenders who are
in a similar situation or the same situation
*** are expected to reoffend within five
years, and that in the court's mind is a
substantial risk to the public and places the
- 6 - public at risk wherever [defendant] is ***
housed.
[Looking] at some of the factors [from
the sex-offender assessment], quite honestly,
defendant, given his past behavior, his dis-
ability level, the problems that he has, he
is probably not a particularly good candidate
for rehabilitation. That in itself would
tend to argue that in fact placement for
[defendant] should be the Department of Cor-
rections [(DOC)].
On the plus side, [defendant], I see a
number of people in the front row here, and
[defendant's] father has testified, and [the
court has] no doubt that there is a strong
support system here for *** defendant should
[h]e choose to avail himself of the counsel-
ing.
It would seem to the court that it would
be extremely inappropriate to sentence [de-
fendant] to a situation where he would have
in any way contact with his sibling. [The
court does] note that *** [defendant's]
grandparents have volunteered during the
interim period to house him.
[The court] assume[s] from that ***
- 7 - offer that, in fact, they would be willing to
comply with any order which the court would
have, as far as [defendant having] no contact
with either sibling *** and a strong monitor
of his actions.
[Defendant], as [the court] weigh[s]
things in [its] own mind here, and the record
does not reflect this, but [the court] is
doing that. There are some lengthy pauses
between the things that [the court has] said
here. *** [The court has] to weigh [its] own
[assessment of the] potential that you are
going to reoffend, and [it] see[s] that it is
a large potential. *** [The court does not]
know what will happen.
This is not specific to you. Yet, in
the same respect, what [the court has to] go
by is *** the evaluation of the professionals
and go by the history that you have, and that
would seem to show that there is a longstand-
ing series of events[.] [I]n particular, one
where there was a probation at the beginning
of this year, and *** the new offense oc-
curred or was charged roughly three weeks
after you were placed on probation for essen-
- 8 - tially the same thing, a misdemeanor version
earlier this year.
It would seem to [the court] that, quite
frankly, one of *** the things that you lack
here is impulse control. [The court is]
confident that what you tell [the court] ***
is what you believe today, and that is that
you will not reoffend, but what [the court]
also ha[s] to take into consideration is how
to protect the public. ***
Yet, in the same respect, [the court is]
going to be placing you into a home, if [the
court] follow[s] what your attorney has sug-
gested, placing you into a home where there
are people just as deserving of protection,
and by placing you in that home, there will
be skilled service providers there.
Yet, in the same respect, what little
experience [the court] has had with others in
a similar situation that is not a great deal
of protection to the others that are there.
Bottom line is this, [defendant], as
much as [the court] would like to see you get
the help, [it] do[es not] think that the risk
that is there to the public is one where [the
court] can justify that by going along with
- 9 - *** sentencing you to probation.
[The court] believe[s] that the only
appropriate sentence is a sentence to [DOC].
[The court] will follow the recommendation of
the State. That will be for a period of four
and a half years. There will be a two-year
mandatory supervised release."
D. Defendant's Motion To Reconsider Sentence and the Trial Court's Ruling on That Motion
Shortly after defendant's December 2008 sentencing
hearing, defendant filed a motion to reconsider sentence. In
support of his motion, defendant claimed that (1) his sentence
was not imposed "according to the seriousness of the offense and
with the objective of restoring [defendant] to useful citizen-
ship"; (2) the trial court failed to consider as mitigating
factors (a) the fact that defendant was "particularly likely to
comply with the terms of probation" and (b) defendant's mental
retardation; and (3) defendant's sentence was not in keeping with
(a) "[his] past history or criminality, mental history and
capacity, and family situation" and (b) the "alternatives avail-
able to the [c]ourt to assist *** [d]efendant in his rehabilita-
tion." Following a January 2009 hearing, the court denied
defendant's motion to reconsider sentence.
This appeal followed.
II. DEFENDANT'S CLAIM THAT THE TRIAL COURT ERRED BY IMPOSING A 4 1/2-YEAR PRISON SENTENCE
Defendant argues that the trial court erred by imposing
- 10 - a 4 1/2-year prison sentence. Specifically, defendant contends
that the court erred by considering (1) his mental retardation as
an aggravating factor, (2) unreliable nonstatutory factors in
aggravation, and (3) information from the reviewing psychia-
trist's evaluation that was obtained in violation of his privi-
lege against self-incrimination. We conclude that defendant has
forfeited review of these contentions.
A. Forfeiture Under Section 5-8-1(c) of the Unified Code of Corrections
In People v. Reed, 177 Ill. 2d 389, 394, 686 N.E.2d
584, 586 (1997), the supreme court first explained that section
5-8-1(c) of the Unified Code of Corrections (Unified Code) (730
ILCS 5/5-8-1(c) (West 1994)) requires a written postsentencing
motion to "allow the trial court the opportunity to review a
defendant's contention of sentencing error and save the delay and
expense inherent in appeal if they are meritorious." In People
v. Montgomery, 373 Ill. App. 3d 1104, 1123, 872 N.E.2d 403, 419
(2007), this court, citing its decision in People v. Rathbone,
345 Ill. App. 3d 305, 802 N.E.2d 333 (2003), reiterated that
section 5-8-1(c) of the Unified Code (730 ILCS 5/5-8-1(c) (West
2004)) mandates that a defendant's challenge to any aspect of his
sentence be made by a written motion filed within 30 days of the
imposition of his sentence. Following the supreme court's
holding in Reed, we concluded in Rathbone that strict enforcement
of section 5-8-1(c) is necessary to allow the trial court to
review the precise claim of error so that it can either (1)
correct its mistake or (2) explain its reasons for imposing the
- 11 - sentence it did. Specifically, we noted as follows:
"[The] defendant's claim is precisely the
type of claim the forfeiture rule is
intended to bar from review when not first
considered by the trial court. Had [the]
defendant raised th[e] issue in the trial
court, that court could have answered the
claim by either (1) acknowledging its mis-
take and correcting the sentence, or (2)
explaining that the court did not improperly
sentence [the] defendant ***. If the court
did not change the sentence, then a record
would have been made on the matter ***,
avoiding the need for [the reviewing] court
to speculate as to the basis for the trial
court's sentence." Rathbone, 345 Ill. App.
3d at 310, 802 N.E.2d at 337.
The rationale from Rathbone--as it was in Montgomery--
applies equally to this case. Here, defendant failed to raise
the claims in his motion to reconsider sentence that he now
posits on appeal. Specifically, defendant claimed that the trial
court should reconsider the sentence it imposed because (1) his
sentence was not imposed "according to the seriousness of the
offense and with the objective of restoring [defendant] to useful
citizenship"; (2) it failed to consider (a) the fact that defen-
dant was "particularly likely to comply with the terms of proba-
- 12 - tion" and (b) defendant's mental retardation as mitigating
factors; and (3) defendant's sentence was not in keeping with (a)
"[his] past history or criminality, mental history and capacity,
and family situation" and (b) the "alternatives available to the
[c]ourt to assist *** [d]efendant in his rehabilitation." These
are not the claims he now posits on appeal, which are that the
trial court improperly considered (1) his mental retardation as
an aggravating factor, (2) unreliable nonstatutory factors in
trist's evaluation that was obtained in violation of his privi-
lege against self-incrimination. Accordingly, defendant has
forfeited these arguments pursuant to section 5-8-1(c) of the
Unified Code.
We further conclude that Supreme Court Rule 604(d) (210
Ill. 2d R. 604(d)) offers a second, and independent, reason to
consider defendant's arguments forfeited.
B. Forfeiture Under Supreme Court Rule 604(d)
Supreme Court Rule 604(d), which governs appeals from
judgments entered upon guilty pleas, provides, in pertinent part,
that "any issue not raised by the defendant in the motion to
reconsider the sentence *** shall be deemed [forfeited]." 210
Ill. 2d R. 604(d).
In People v. Williams, 299 Ill. App. 3d 791, 795, 701
N.E.2d 1186, 1189 (1998), this court noted the supreme court's
rationale for enacting Rule 604(d) as follows:
"Rule 604(d) is the supreme court's direct
- 13 - response to the large number of appeals in
the early 1970s that flooded the appellate
court. People v. Evans, 174 Ill. 2d 320,
329, 673 N.E.2d 244, 248 (1996). By promul-
gating this rule, the supreme court simply
notified defendants that if they really claim
to be aggrieved by some deficiency in the
trial court proceedings during which they
pleaded guilty, then they must first call the
alleged deficiency to the trial court's at-
tention, where relief could be granted.
Otherwise, permitting such defendants to
appeal would result *** in an unjustified
waste of scarce judicial resources."
Here, defendant pleaded guilty pursuant to an open
plea, rendering Rule 604(d) applicable. Because, as previously
discussed, defendant failed to raise the arguments in his motion
to reconsider sentence that he now posits on appeal, we conclude
that defendant has forfeited his claims under Rule 604(d) as
well.
C. The Plain-Error Doctrine and This Case
Despite having forfeited his claims on multiple
grounds, defendant contends that his procedural default may be
excused by the plain-error doctrine of Supreme Court Rule 615(a)
(134 Ill. 2d R. 615(a)). We disagree.
Supreme Court Rule 615(a) provides as follows:
- 14 - "Any error, defect, irregularity, or
variance which does not affect substantial
rights shall be disregarded. Plain errors or
defects affecting substantial rights may be
noticed although they were not brought to the
attention of the trial court." 134 Ill. 2d
R. 615(a).
In People v. Bannister, 232 Ill. 2d 52, 65, 902 N.E.2d
571, 580 (2008), the supreme court provided the following guid-
ance concerning the circumstances in which the plain-error
doctrine applies:
"The doctrine serves as '"a narrow and lim-
ited exception to the general [rule of proce-
dural default]."' People v. Szabo, 113 Ill.
2d 83, 94[, 497 N.E.2d 995, 999] (1986),
quoting People v. Pastorino, 91 Ill. 2d 178,
188[, 435 N.E.2d 1144, 1149] (1982). This
court will review unpreserved error when a
clear and obvious error occurs and: (1) the
evidence is closely balanced; or (2) that
error is so serious that it affected the
fairness of the defendant's trial and chal-
lenged the integrity of the judicial process.
People v. Piatkowski, 225 Ill. 2d 551, 565[,
870 N.E.2d 403, 410-11] (2007); People v.
Hall, 194 Ill. 2d 305, 335[, 743 N.E.2d 521,
- 15 - 539] (2000)."
"'Under both prongs of the plain-error doctrine, the burden of
persuasion remains with defendant.'" People v. Wishard, 396 Ill.
App. 3d 283, 286, 919 N.E.2d 1118, 1120 (2009), quoting People v.
Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). "When
a defendant fails to establish plain error, the result is that
the 'procedural default must be honored.'" Bannister, 232 Ill.
2d at 65, 902 N.E.2d at 580-81, quoting People v. Keene, 169 Ill.
2d 1, 17, 660 N.E.2d 901, 910 (1995).
Defendant relies on the Second District's decision in
People v. McCain, 248 Ill. App. 3d 844, 850, 617 N.E.2d 1294,
1299 (1993), for the proposition that the plain-error doctrine
applies to this case because his challenges to his sentence
"affect[] [his] fundamental right to liberty." However, the
plain-error doctrine is not a general savings clause, to be used
as a means by which to preserve all errors affecting substantial
rights that have not been brought to the trial court's attention.
People v. Herron, 215 Ill. 2d 167, 177, 830 N.E.2d 467, 474
(2005). And we note that defendant's contention here is essen-
tially the same contention this court rejected in Rathbone.
Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d at 338 (holding
that it is not sufficient to "simply state that because sentenc-
ing affects the defendant's fundamental right to liberty, any
error committed at that stage is reviewable as plain error").
Nonetheless, as previously stated, sentencing errors raised for
the first time on appeal are reviewable as plain error if (1) the
- 16 - evidence was closely balanced or (2) the error was sufficiently
grave that it deprived the defendant of a fair sentencing hear-
ing. Rathbone, 345 Ill. App. 3d at 312, 802 N.E.2d at 339.
In this case, defendant does not specifically assert
that (1) the evidence at the sentencing hearing was closely
balanced or (2) any of the alleged errors deprived him of a fair
sentencing hearing. However, defendant does contend that the
trial court committed error when it considered certain improper
information in aggravation. Thus, although defendant never
specifically asserts as much, for purposes of plain-error review,
he appears to be challenging the fairness of his sentencing
hearing. Assuming arguendo that the trial court erred by consid-
ering improper information in aggravation, we conclude that
defendant's sentencing hearing was not fundamentally unfair.
Therefore, we do not deem defendant's claims sufficient to
warrant plain-error review.
In so concluding, we note that the crime defendant
pleaded guilty to carried a minimum sentence of three years and a
maximum sentence of seven years in prison (see 720 ILCS 5/12-
16(g) (West 2008) (designating aggravated criminal sexual abuse
(720 ILCS 5/12-16(b) (West 2008)) a Class 2 felony)). Thus,
defendant's 4 1/2-year prison sentence was a mid-range sentence.
The record shows that the State recommended the 4 1/2-year
sentence after explaining how it had carefully considered the
circumstances in this case. Indeed, the State (1) did not pursue
a violation-of-probation charge against defendant and (2) recom-
- 17 - mended the mid-range sentence after balancing the fact that
defendant (a) had recently committed the same crime against the
same victim and (b) was dealing with a cognitive disability.
Moreover, the record from the sentencing hearing also shows that
the trial court painstakingly considered all the factors related
to (1) defendant's condition, (2) the nature of the offense, and
(3) sentencing alternatives before imposing the sentence recom-
mended by State. Accordingly, we do not view any alleged errors
in defendant's sentencing hearing as having jeopardized the
integrity or reputation of the judicial process.
In closing, we also note that defendant asserts as a
last resort that we should view his trial counsel's failure to
preserve these issues as ineffective assistance of counsel. For
the reasons that this court has outlined in People v. Durgan, 346
Ill. App. 3d 1121, 806 N.E.2d 1233 (2004), we decline to address
this claim. In so doing, we invite defendant to pursue his
ineffective-assistance-of-trial-counsel claims under the Post-
Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West
2008)), where a complete record can be made regarding the circum-
stances of his counsel's alleged ineffectiveness.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment as costs of this appeal.
Affirmed.
MYERSCOUGH, P.J., and McCULLOUGH, J., concur.
- 18 -