People v. Aliva-Perez

2025 IL App (5th) 230562-U

• Court: Appellate Court of Illinois
• Decided: August 6, 2025
• Docket: 5-23-0562
• Status: Unpublished

Opinion

NOTICE 2025 IL App (5th) 230562-U NOTICE Decision filed 08/06/25. The This order was filed under text of this decision may be NO. 5-23-0562 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Hardin County. ) v. ) No. 21-CF-34 ) BENITO AVILA-PEREZ, ) Honorable ) Tara R. Wallace, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justices Barberis and Boie concurred in the judgment.

ORDER

¶1 Held: Defense counsel was ineffective where counsel failed to assist the defendant with a motion to reconsider the defendant’s sentence.

¶2 A jury convicted the defendant, Benito Avila-Perez, of predatory criminal sexual

assault of a child. The defendant was sentenced to 20 years in the Illinois Department of

Corrections (IDOC) and 3 years to natural life of mandatory supervised release (MSR). On

appeal, the defendant argues that the circuit court abused its discretion in imposing a 20-

year sentence. For the following reasons, we affirm the defendant’s conviction and remand

for further proceedings.

1 ¶3 I. BACKGROUND

¶4 On September 30, 2021, the defendant was charged by information with predatory

criminal sexual assault in violation of section 11-1.40(a)(1) of the Criminal Code of 2012

(720 ILCS 5/11-1.40(a)(1) (West 2020)). Between August 2017 and May 2018, the

defendant allegedly placed his finger in the vagina of A.C., a child under 13 years of age.

¶5 The defendant was married to Emily Dare and they had three children under the age

of 10. Dare’s second cousin, Dana Conkle, was married to the defendant’s best friend, and

their families frequently spent time together. One of Conkle’s children, A.C., born

September 18, 2007, was the victim in this case.

¶6 At trial, A.C. testified to an incident that occurred between September and

November of 2017, during a sleepover at the defendant’s house with A.C., her sisters, and

the defendant’s children. A.C. turned 10 in September of 2017, and she was in the fifth

grade at that time. A.C. testified that the children and defendant had fallen asleep on the

defendant’s bed watching television. A.C. woke up, at some point in the night, because the

defendant had inserted a finger into A.C.’s vaginal area and was moving his finger around.

¶7 Emily Dare, the defendant’s wife, testified as a witness for the defense. During her

testimony, she testified that she was always home from work by 8 p.m. Dare testified that

when she worked, the defendant would care for their children. If he was not available, then

other members of her family would assist in caring for the children. Dare testified that she

remained married to the defendant but was also in a relationship with Cody Morgan. They

had been dating for eight months. No testimony was presented on Morgan’s involvement

with the defendant’s children. 2 ¶8 The defendant testified on his own behalf, and he denied the allegations. The

defendant additionally testified that his youngest daughter has significant health issues. She

required a feeding tube, an oxygen monitor, and slept with an oxygen mask. After the close

of evidence and closing arguments, the jury found the defendant guilty of predatory

criminal sexual assault of a child.

¶9 A sentencing hearing was held on July 14, 2023, and the parties agreed that the

sentencing range was 6 to 60 years in the IDOC followed by 3 years to natural life of MSR.

The State did not present any evidentiary testimony at the sentencing hearing. Michael

Turner, the defendant’s friend, testified on the defendant’s behalf. Turner testified that the

defendant was a hard worker and known to be dependable in the community. The

defendant’s youngest daughter had special needs, and the defendant provided necessary

care.

¶ 10 Dare testified that she was married to the defendant, and they had three living

children together. Their four-year-old daughter had “KINDS220 gene depletion” and was

diagnosed with hydrocephalus, cerebral palsy, epilepsy, dystonia, and she had seizures.

The defendant was “very” involved in their daughter’s day-to-day care. Dare testified that

while the defendant has been in custody, it has been “extremely difficult” for her to handle

healthcare tasks on her own. Dare additionally testified that the defendant had helped

financially as well. Dare did not provide any testimony regarding her relationship with

Morgan.

¶ 11 Conkle and A.C. provided statements to the circuit court. The State recommended

that the defendant receive a 15-year sentence in the IDOC with 3 years to life of MSR. 3 ¶ 12 The defense argued factors in mitigation including that the defendant had no prior

criminal history, the defendant’s criminal conduct was a result of circumstances that were

unlikely to reoccur, the defendant would likely comply with the terms of a period of

probation, and the defendant served as a caregiver to his disabled daughter. The defense

requested a sentence of six years followed by three years to life MSR.

¶ 13 The defendant provided the circuit court a statement of allocution in Spanish and

the circuit court read a translated statement into the record. The defendant’s statement

requested that the circuit court consider that the defendant was a good father and husband

and that he did not have a criminal history. His statement included that he had a severely

disabled daughter who was in a wheelchair and could not eat by herself. The defendant

explained that he took care of his disabled daughter, as well as his other daughters when

his wife was at work.

¶ 14 The circuit court considered the presentence investigation report, evidence

presented, arguments, and factors in aggravation and mitigation, as well as the history and

character of the defendant. Additionally, the circuit court considered the defendant’s family

and their hardship while the defendant was in custody and the victim impact statement.

¶ 15 The circuit court found that the following factors in aggravation were applicable:

the defendant’s conduct caused or threatened serious harm, the sentence was necessary to

deter others, and that the defendant held a position of trust or supervision to a victim under

18 years of age.

¶ 16 As for factors in mitigation, the circuit court only applied one factor. The circuit

court found that the defendant served as a caregiver to one of his children, and stated: 4 “I say that lightly, because I do know that the mother is actively involved in the caretaker role, and the mother gave testimony at the trial that she is currently in a relationship with someone else. So, I believe that person can act as a caregiver role, as well.”

The circuit court considered, but did not find, that the circumstances were unlikely to recur

because the circuit court believed that the defendant would act in the same manner with

someone else. The circuit court additionally noted that the defendant did not apologize to

the victim during his statement in allocution.

¶ 17 The circuit court sentenced the defendant to 20 years in the IDOC, followed by 3

years to natural life of MSR. The circuit court reasoned that the defendant would serve

85% of his sentence, 17 years, and his children would be adults when released from the

IDOC. The defendant’s children could decide at that time if they wanted to have further

contact with the defendant.

¶ 18 The circuit court informed the defendant that he had the right to appeal and “within

30 days, file with the clerk of this court a written motion to vacate your plea of guilty”

before filing an appeal. The circuit court asked the defendant if he understood his appeal

rights and the court interpreter responded, “I don’t know if he does, because you said all

that so fast, I could not keep up.” The circuit court then repeated that the defendant had to

file a motion to vacate his plea of guilty. Defense counsel corrected the circuit court

because the defendant had not pled guilty. Then, the following transpired:

“THE COURT: I’m sorry. You’re right. If the motion is granted— we’re going to go back to the right to appeal, though. I—I’m just putting in the Plea of Guilty. And he was found guilty by a jury. All right. If he would need to reconsider his sentence, that—that part is still correct. Okay?

INTERPRETER: Yeah. 5 THE COURT: If the Court were to reconsider the sentence—I’m sorry. And if you were indigent, a copy of the proceedings of your plea or of your trial and your Sentencing Hearing would be provided to you free of charge, and you would be provided with an attorney to assist you in preparing that motion.

If I deny your motion, you would have 30 days from that date to file a written Notice of Appeal. Any issue or claim of error that’s not raised in your Motion to Reconsider would be waived for purpose of appeal.”

The defendant stated that he understood his appeal rights. Defense counsel additionally

informed the circuit court that he had detailed discussions with the defendant about his

appeal rights and defense counsel would continue to consult with the defendant. The circuit

court then asked defense counsel if he considered the appeal admonishment to be sufficient

for the record and offered to go over the defendant’s appeal rights again. Defense counsel

then stated:

“I think, based upon our conversations, he understands he has the right to appeal. And he understands what he needs to do. And I’ll—I’ll continue to consult with him on that.”

¶ 19 The defendant did not file a motion to reconsider his sentence. Defense counsel filed

a notice of appeal on July 28, 2023.

¶ 20 II. ANALYSIS

¶ 21 On appeal, the defendant argues that the circuit court abused its discretion in

imposing a 20-year sentence where the circuit court considered an improper fact in

sentencing and did not consider all mitigating factors.

¶ 22 When determining an appropriate sentence, the circuit court must consider the

defendant’s “credibility, demeanor, general moral character, mentality, social

environment, habits, and age” and impose a sentence based on the circumstances of each 6 case. (Internal quotation marks omitted.) People v. Pina, 2019 IL App (4th) 170614, ¶ 19.

The circuit court must also carefully consider the statutory factors in mitigation and

aggravation. People v. Center, 198 Ill. App. 3d 1025, 1033 (1990). “A trial court has wide

latitude in sentencing a defendant, so long as it neither ignores relevant mitigating factors

nor considers improper factors in aggravation.” People v. Roberts, 338 Ill. App. 3d 245,

251 (2003). The circuit court is not required to recite and assign a value to each factor

considered. Pina, 2019 IL App (4th) 170614, ¶ 19. There is a presumption that a circuit

court considers all mitigating evidence presented. People v. Abrams, 2015 IL App (1st)

133746, ¶ 33.

¶ 23 “If a sentence falls within the statutory limits, it will not be overturned on appeal

absent abuse of discretion.” People v. Bunning, 2018 IL App (5th) 150114, ¶ 16. “An abuse

of discretion occurs only if a sentence greatly varies from the spirit and purpose of the law

or where it is manifestly disproportionate to the nature of the offense.” Bunning, 2018 IL

App (5th) 150114, ¶ 16. “The defendant bears the burden of establishing that a sentence

was based on an improper consideration ***.” People v. Sherman, 2020 IL App (1st)

172162, ¶ 52.

¶ 24 Here, the circuit court only addressed one factor in mitigation, that the defendant

served as a caregiver to one of his children. Dare had testified at the sentencing hearing

that the defendant was “very” involved in their daughter’s care, and it was “extremely

difficult” for Dare to care for their daughter’s healthcare tasks on her own. Contrary to

Dare’s testimony, the circuit court found that Dare’s boyfriend of eight months was able to

act as a caregiver to the defendant’s disabled daughter. The circuit court improperly 7 considered information not in evidence when making this determination as no information

on Dare’s boyfriend’s willingness or ability to care for the defendant’s disabled child had

been presented.

¶ 25 Although the State recommended a 15-year sentence, the defendant was sentenced

to 20 years in the in the IDOC. The rationale for the longer sentence was to ensure that the

defendant’s children would be adults when the defendant was released, as the circuit court

considered that the defendant would actually serve 17 years, or 85% of a 20-year sentence.

The circuit court had not addressed the defendant’s criminal history and gave little weight

to any mitigating factors.

¶ 26 “[T]o preserve a claim of sentencing error, both a contemporaneous objection and a

written postsentencing motion raising the issue are required.” People v. Hillier, 237 Ill. 2d

539, 544 (2010). The defendant did not file a motion to reconsider his sentence, and his

sentencing issue was not preserved on appeal. The defendant seeks plain error review,

argues that the circuit court provided an inadequate Rule 605(a) admonition, and argues

that defense counsel was ineffective.

¶ 27 At the time of imposing a sentence, Illinois Supreme Court Rule 605(a) required the

circuit court to advise the defendant as follows:

“A. that the right to appeal the judgment of conviction, excluding the sentence imposed or modified, will be preserved only if a notice of appeal is filed in the trial court within thirty (30) days from the date on which sentence is imposed;

B. that prior to taking an appeal, if the defendant seeks to challenge the correctness of the sentence, or any aspect of the sentencing hearing, the defendant must file in the trial court within 30 days of the date on which sentence is imposed a written motion asking to have the trial court reconsider 8 the sentence imposed, or consider any challenges to the sentencing hearing, setting forth in the motion all issues or claims of error regarding the sentence imposed or the sentencing hearing;

C. that any issue or claim of error regarding the sentence imposed or any aspect of the sentencing hearing not raised in the written motion shall be deemed waived; and

D. that in order to preserve the right to appeal following the disposition of the motion to reconsider sentence, or any challenges regarding the sentencing hearing, the defendant must file a notice of appeal in the trial court within 30 days from the entry of the order disposing of the defendant's motion to reconsider sentence or order disposing of any challenges to the sentencing hearing.” Ill. S. Ct. R. 605(a)(3) (eff. Dec. 23, 2022).

Whether the circuit court's admonishment strictly complied with Rule 605(a) is reviewed

de novo. People v. Polk, 349 Ill. App. 3d 760, 763 (2004).

¶ 28 The circuit court misspoke while admonishing the defendant by referring to the

defendant’s “guilty plea” where the defendant had been found guilty after a jury trial. We

also note that the defendant required an interpreter, and the interpreter indicated that the

defendant likely did not understand the admonishments because the circuit court was

speaking too fast. After the circuit court was corrected by defense counsel, the circuit court

indicated to the interpreter that the defendant had been found guilty and had not pled guilty.

¶ 29 The defendant was advised by the circuit court that “[a]ny issue or claim of error

that’s not raised in your Motion to Reconsider would be waived for purpose of appeal” and

that the defendant would have 30 days to appeal after the denial of the motion to reconsider.

However, the defendant was not clearly advised on Rule 605(a)(3)(B),

“that prior to taking an appeal, if the defendant seeks to challenge the correctness of the sentence, or any aspect of the sentencing hearing, the defendant must file in the trial court within 30 days of the date on which sentence is imposed a written motion asking to have the trial court reconsider 9 the sentence imposed, or consider any challenges to the sentencing hearing, setting forth in the motion all issues or claims of error regarding the sentence imposed or the sentencing hearing.” See Ill. S. Ct. R. 605(a)(3)(B) (eff. Dec. 23, 2022).

¶ 30 The circuit court had asked defense counsel whether the appeal admonishments

were sufficient and offered to restate the admonishments for the defendant. Defense

counsel declined the circuit court’s effort to correct the admonishments and advised that

the defendant was aware of his appeal rights. Defense counsel then filed a notice of appeal

without first filing a motion to reconsider the sentence imposed.

¶ 31 Criminal defendants have a constitutional right to effective assistance of counsel.

People v. Hale, 2013 IL 113140, ¶ 15. “A motion to reconsider sentence is a critical stage

of the criminal proceeding at which a defendant is entitled to counsel.” People v. Bailey,

364 Ill. App. 3d 404, 408 (2006).

¶ 32 Claims of ineffective assistance of counsel are governed by a two-pronged test

established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to

establish a claim of ineffective assistance of counsel, the defendant must show that (1)

counsel’s performance was deficient, and (2) the deficient performance resulted in

prejudice. People v. Hughes, 2012 IL 112817, ¶ 44. Both prongs of the Strickland test must

be satisfied by the defendant for a finding of ineffectiveness. People v. Veach, 2017 IL

120649, ¶ 30. We apply de novo review to the defendant’s ineffective assistance of counsel

claims. People v. Gunn, 2020 IL App (1st) 170542, ¶ 91.

¶ 33 Defense counsel’s performance was deficient where he prevented the circuit court

from clarifying Rule 605(a) admonishments with an interpreter present, and by failing to

10 assist the defendant to draft and file a motion to reconsider to challenge the sentence. The

defendant was prejudiced by counsel’s deficient performance which limited his ability to

challenge his sentence to the circuit court and on appeal. Therefore, we hold that defense

counsel provided ineffective assistance.

¶ 34 III. CONCLUSION

¶ 35 Accordingly, the defendant’s conviction is affirmed, and this cause is remanded to

the circuit court of Hardin County for proper Rule 605(a) admonishments and to afford the

defendant an opportunity to file a motion to reconsider his sentence.

¶ 36 Affirmed and remanded with directions.