People v. Banks

2020 IL App (3d) 170462-U

• Court: Appellate Court of Illinois
• Decided: April 29, 2020
• Docket: 3-17-0462
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

2020 IL App (3d) 170462-U

Order filed April 29, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-17-0462 v. ) Circuit No. 16-CF-345 ) JAMES R. BANKS, ) Honorable ) Stephen A. Kouri, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court. Justice Wright specially concurred, joined by Justice Schmidt. ____________________________________________________________________________

ORDER

¶1 Held: Sentence following probation revocation was not based on improper factors.

¶2 Defendant, James R. Banks, appeals following his conviction for unlawful possession of

a controlled substance. After initially being sentenced to a term of probation, the court sentenced

defendant to 5½ years’ imprisonment after that probation was revoked. Defendant argues that the

sentence imposed by the court, coupled with the court’s comments in imposing sentence, indicate that the court punished him for his behavior while on probation, rather than for his

original offense. We affirm.

¶3 I. BACKGROUND

¶4 The State charged defendant via indictment with one count of Class 4 unlawful

possession of a controlled substance (720 ILCS 570/402(c) (West 2016)). Defendant entered a

plea of guilty in exchange for a sentence of 18 months’ probation. As a factual basis for the plea,

the State averred that defendant fled from the police and, while running, discarded a small

amount of cocaine. The court accepted defendant’s plea and sentenced him to a term of 18

months’ probation. Among the conditions of probation were the requirements that defendant “not

violate any criminal statute of any jurisdiction” and that defendant not possess, use, or consume

alcoholic beverages or illegal drugs.

¶5 Approximately six months after defendant pled guilty, the State moved to revoke his

probation. The petition to revoke alleged that defendant violated four specific conditions of his

probation, including the prohibition on the use of alcohol and drugs. The State alleged that

defendant violated those conditions by using cocaine, marijuana, and alcohol; failing to report to

probation on five occasions; failing to reside at an approved address; and failing to undergo

substance abuse treatment. The petition to revoke did not allege that defendant committed any

criminal offenses. Defendant admitted to the allegations in the State’s petition.

¶6 At the ensuing sentencing hearing, probation officer Scott Moon testified that while on

probation defendant missed a number of appointments and “continually tested positive for

various illegal drugs.” Defendant reported that he was living with his sister, but Moon was never

able to locate defendant at that address. Defendant was not approved to live at the home of his

girlfriend, Tamara Goss, because she also suffered from legal and substance abuse problems.

2 Moon testified he raised the idea of entering drug court to defendant. Moon described

defendant’s response to that suggestion:

“[He stated] he does not believe he needs to follow any of the rules of drug court

or probation, that in his words all the rules were ‘bullshit’ and that he wasn’t

going to do anything associated with what probation or drug court would expect

of him.”

¶7 The parties agreed that defendant was extended-term eligible based on his criminal

history, and the prosecutor noted that the current offense had been committed while defendant

was released on parole. The State acknowledged defendant’s substance abuse problems, but

argued that not all of his shortcomings could be attributed to his addictions, and that his criminal

history warranted a greater sentence. The State urged that defendant was “incapable of not

violating the law.”

¶8 In mitigation, defense counsel argued that defendant did not cause or threaten serious

harm with his actions. Counsel conceded the extensive criminal history, but argued that history

alone would not justify a long sentence, particularly given the relatively small amount of cocaine

at issue in this case. In allocution, defendant accepted responsibility for the offense and

acknowledged that he was a drug addict.

¶9 The court imposed an extended-term sentence of six years’ imprisonment. In so doing,

the court speculated about the sentence defendant might have received had probation not

originally been available, then stated the basis for its sentencing decision:

“You know, if probation wasn’t an option when you entered into this plea

agreement I think in late 2016, I think that’s what it was, you know, you would

have gotten a lot less time but when you get—when you get the opportunity to

3 show the Court and show society and show probation that you’re serious about

complying with the rules of society *** [and] you flagrantly thumb your nose at

the restrictions and conditions and requirements, that hurts you. I don’t throw that

aside and say, well, that’s not relevant. That is relevant to me. It tells me that, you

know, maybe we all just need a little break from [defendant]. And what I mean by

that is *** you did waste probation’s time and you probably wasted your own

time I think because you’re going to have a lot more time as a result in this case in

terms of DOC time.

So I’m going to sentence you to—you know, I mean, this isn’t just about

this $20 cocaine. It’s about all the failed drug tests, the games that apparently

were played with your place of residence and on and on and on.”

In response to the court’s comments, defendant insisted that he had, in fact, been living at his

sister’s address while on probation, and that Moon’s implication to the contrary was inaccurate.

The court responded to that by telling defendant that its “primary concern” was not his living

situation, but his admission to consuming drugs on multiple occasions while on probation.

¶ 10 Defendant filed a motion to reconsider sentence alleging that he had lived with his sister

during the required time periods and that the court had erred in implying otherwise. The motion

asserted that defendant’s sister would testify that he had lived with her. Following a hearing, the

court reduced defendant’s sentence to 5½ years’ imprisonment. In imposing the new sentence,

the court commented:

“The one argument about going from probation to max, I kind of think when you

are cut a break which he, I think he was cut a break given his history when he was

given probation in this case given his extensive history, when you’re cut a break

4 like that and then you flagrantly, you know, violate the conditions and restrictions

imposed upon you, you’ve got a much bigger downside than you would have had

had this Court just sentenced you originally under the original charge. So there’s

some risk when you go on probation that if you violate, this judge is going to

penalize you because you got a break in the first place and you didn’t take

advantage of it. Instead, you flagrantly disregarded it like you have in the past.”

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant raises a solely procedural challenge: that the court abused its

discretion by improperly punishing him for his conduct on probation rather than for the

underlying offense of unlawful possession of a controlled substance. Notably, however, he does

not argue that his ultimate sentence of 5½ years is unreasonable or excessive. Defendant

concedes that he failed to preserve this issue for appellate review, and thus asks that we consider

the issue under the second prong of plain error.

¶ 13 The first step in any plain error review is a determination of whether “clear or obvious

error” was committed. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Thus, we begin by

determining whether it is clear or obvious that the court abused its discretion in sentencing

defendant. Only if such error is found need we proceed to a second-prong analysis. Id.

¶ 14 In sentencing a defendant, the circuit court must consider both the seriousness of the

offense as well as the defendant’s rehabilitative potential. See People v. Alexander, 239 Ill. 2d

205, 214 (2010); Ill. Const. 1970, art. I, § 11 (“All penalties shall be determined both according

to the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.”). When sentencing a defendant following the revocation of probation, the court

“may never punish a defendant for the conduct that gave rise to the probation violation.” People

5 v. Varghese, 391 Ill. App. 3d 866, 876 (2009). It may nevertheless consider that conduct as

evidence of the defendant’s rehabilitative potential. People v. Witte, 317 Ill. App. 3d 959, 963

(2000).

¶ 15 When a sentence falls within the prescribed statutory range, a reviewing court may not

overturn that sentence absent an abuse of the circuit court’s discretion. E.g., People v. Stacey,

193 Ill. 2d 203, 209-10 (2000). The court abuses its discretion where its ruling is arbitrary,

fanciful, or where no reasonable person would take the view adopted by the court. People v.

Donoho, 204 Ill. 2d 159, 182 (2003). Such an abuse of discretion may be found where “the

reviewing court is strongly persuaded that the sentence imposed after revocation of probation

was in fact imposed as a penalty for the conduct which was the basis of revocation, and not for

the original offense.” (Emphases in original.) People v. Young, 138 Ill. App. 3d 130, 142 (1985).

“[T]he record must clearly show that the court considered the original offense.” People v. Hess,

241 Ill. App. 3d 276, 284 (1993).

¶ 16 The circuit court in this case unquestionably placed great emphasis on defendant’s

probation violation. Nearly the entirety of the court’s commentary—at both the initial sentencing

and upon defendant’s motion to reconsider sentence—was dedicated to the violation of

probation. In fact, the court stated explicitly that defendant was receiving a more severe sentence

than he would have received initially if probation had not been available.

¶ 17 Those facts, however, are not dispositive. The circuit court is allowed to consider a

probation violation as evidence of rehabilitative potential when fashioning a new sentence. Witte,

317 Ill. App. 3d at 963. In fact, where a sentence is to be fashioned based upon the seriousness of

the offense as well as the offender’s rehabilitative potential, it would be surprising if the court

did not discuss defendant’s probation violation since a defendant’s cooperation—or lack

6 thereof—with a probation department may speak directly to his willingness and ability to be

rehabilitated. It follows that while a court may not punish a defendant for the conduct giving rise

to his probation violation, it may impose a greater sentence if it concludes the fact of the

violation is itself indicative of a lack of rehabilitative potential.

¶ 18 The present case is an extremely close one. The distinction between punishing conduct

and penalizing a lack of rehabilitative potential is inherently a subtle one. Where such a fine

distinction is concerned, divining the sentencing court’s intent through review of a cold record

will always present difficulties. The circuit court’s wide-ranging comments in this case only

compound those difficulties. Certain of those statements, taken in isolation, could be read to

support affirming the court’s sentence, while others would seem to support reversal. It is thus not

helpful for us to parse each individual statement the court made. Rather, we must try to discern

the actual basis for the court’s imposition of the specific sentence.

¶ 19 In this appeal, we are thus tasked only with determining whether the gravamen of the

court’s comments indicates that the term of imprisonment was based upon the seriousness of

defendant’s criminal history and his demonstrated lack of rehabilitative potential. Only if we are

“strongly persuaded” that the court instead imposed its sentence as a punishment for defendant’s

conduct will we vacate the sentence. See Young, 138 Ill. App. 3d at 142.

¶ 20 For context, we first note that revocation throws the court and parties back to a pre-

probation sentencing situation. In this case, defendant’s criminal offense involved a small

amount of cocaine but, because of his extensive criminal history, he was, as agreed by the parties

on the record, eligible for extended sentencing up to six years. In addition, this crime was

committed while defendant was on parole from prison for a prior crime. Probation and the

possibility of a lenient sentence were once again included in the trial court’s range of options. As

7 the court noted, probation had been tried as an opportunity for defendant to show he was serious

about conforming to the rules of society and he had instead demonstrated by word and deed that

he had no intention of even attempting such conformity. This was the situation at the time of the

resentencing.

¶ 21 It is notable that in this case defendant was not charged with violating his probation by

committing a new criminal offense. Rather, the claimed violation was the flouting of the

fundamental conditions of that probation. The petition to revoke alleged that defendant

consumed drugs and alcohol, missed probation appointments, did not live at an address approved

by the probation department, and failed to enroll in substance abuse treatment. None of these was

asserted as a criminal offense in the petition to revoke probation, and none is, without more,

inherently the type of delinquent conduct the criminal justice system tends to punish.

¶ 22 Rather than condemning defendant’s conduct, the gist of the court’s comments evinces a

condemnation of defendant’s attitude. Nowhere is this more apparent than when the court

suggested that probation had given defendant an opportunity to demonstrate that he could

comply with the rules of society, but instead defendant had “flagrantly thumb[ed] [his] nose at

the restrictions and conditions and requirements” of his probation. This comment was supported

by Moon’s testimony, which established not only that defendant had violated probation, but had

stated that he had no intention of following the rules of probation or drug court (which Moon had

broached as a potential benefit to defendant in the future).

¶ 23 The circuit court, in its extensive comments, vigorously criticized defendant for the actual

conduct giving rise to his probation violation—the use of drugs, the missed appointments, and

the seeming lies about his address—but did not definitively attribute the longer sentence to that

conduct. Instead, the court appeared to ground its sentencing decision in its perception that

8 defendant had been given an opportunity, through probation, to demonstrate his rehabilitative

potential and had instead demonstrated a lack of such potential by his cavalier attitude toward

compliance with the restrictions and conditions of probation. On these facts and in light of the

extreme deference demanded by our standard of review, we find that the essence of the court’s

rationale was properly limited to its consideration of defendant’s probation conduct as indicative

of his rehabilitative potential. See Hess, 241 Ill. App. 3d at 284. As we are not “strongly

persuaded” that the circuit court imposed a punishment for defendant’s conduct while on

probation, we cannot find that the court abused its discretion. Young, 138 Ill. App. 3d at 142. We

therefore need not proceed further in our plain error analysis. Piatkowski, 225 Ill. 2d at 565.

¶ 24 III. CONCLUSION

¶ 25 The judgment of the circuit court of Tazewell County is affirmed.

¶ 26 Affirmed.

¶ 27 JUSTICE WRIGHT, specially concurring:

¶ 28 I concur in all aspects of the author’s analysis with two exceptions. First, contrary to the

assertion in paragraph 21, paragraph 3(A) of the amended petition alleges defendant consumed

cocaine on five occasions during this term of probation. Consumption of cocaine requires

possession of cocaine, which is a criminal offense.

¶ 29 Second, I also take exception to the observation that the trial judge’s choice of words

made this a close case upon review. The record reveals this offense was committed shortly after

defendant completed a six-year sentence in the Illinois Department of Corrections (DOC) for

serious felonies involving aggravated fleeing and eluding and possession of a stolen vehicle and

defendant was on parole for those offenses at the time of this drug offense. Defendant’s prior

criminal history includes, but is not limited to, more than 10 prior felony convictions, multiple

9 sentences to the DOC for terms between 3 and 6 years duration, 5 previous and unsuccessfully

completed terms of felony probation, plus traffic and misdemeanor convictions too numerous to

mention in this short but separate offering. Respectfully, in light of defendant’s extensive

criminal history, I agree the sentence was warranted for the original offense and should be

affirmed. Therefore, I write separately to express my view that upon review, this was not a close

call at all.

¶ 30 JUSTICE SCHMIDT, specially concurring:

¶ 31 I join in Justice Wright’s special concurrence.